Obama moves to block FOI torture request

The Obama administration has urged a court to reject a request to disclose thousands of pages of documents from a Justice Department investigation into the torture of detainees by the Central Intelligence Agency, including summaries of interviews with about 100 witnesses and documents explaining why in the end no charges were filed. http://www.nytimes.com/2014/12/11/us/politics/us-tells-court-that-documents-from-torture-investigation-should-remain-secret.html?ref=world
The administration made the filing late Tuesday in response to a Freedom of Information Act lawsuit brought by The New York Times, hours after the Senate Intelligence Committee made public a 524-page executive summary of its own investigation into C.I.A. torture. The committee based its report on a review of C.I.A. documents but did not conduct any interviews.
The Justice Department materials, the court filing revealed, include 10 reports and memorandums totaling 1,719 pages — more than three times the number of pages in the Senate report released Tuesday — as well as “numerous” pages of reports on interviews with current and former C.I.A. officials.
The filing also included a statement by John H. Durham, the prosecutor who oversaw the 2008-12 criminal investigation and who has said little publicly about what he found or why he decided against charges. In 2012, Attorney General Eric H. Holder Jr. announced that he would follow Mr. Durham’s recommendation.
In his court declaration, Mr. Durham wrote that his reports “analyzed the substantial volume of evidence gathered during the investigations.”
“Beyond evaluating facts, statements and testimony of witnesses, and other evidence as they related to the criminal investigations,” Mr. Durham wrote, “these reports assessed the admissibility of the evidence in judicial proceedings and identified other strengths and weaknesses associated with the evidence.” But every page should be kept secret, the Justice Department told the court, because disclosing them could affect the candor of law enforcement deliberations about whether to bring criminal charges. The administration invoked an exemption to the Freedom of Information Act for attorney work product and deliberative materials.
David E. McCraw, a lawyer for The Times, said the newspaper would dispute that the material was covered by the exemption.
The Justice Department said in a statement on Tuesday that its investigators had looked at the full version of the Senate Intelligence Committee report “and did not find any new information that they had not previously considered in reaching their determination,” adding that Mr. Durham’s “inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges.”
Mr. Holder’s decision in 2009 to open a criminal investigation into the C.I.A.’s treatment of detainees abroad had prompted a political backlash and made it difficult for congressional investigators to speak with current and former agency officials, since they faced legal jeopardy.
Citing the fact that the Senate investigation would have to rely only on internal C.I.A. documents and not interviews with witnesses, committee Republicans withdrew their support for it. And since the report’s release, defenders of the C.I.A. have argued that the report should not be seen as an accurate and complete historical account.
Michael Davidson, who was the top lawyer for the Senate Intelligence Committee until his retirement in 2011 and who worked on the first four years of its investigation, portrayed the executive branch’s stance as a Catch-22.
“One agency of the executive branch (the C.I.A.) complains that no one was interviewed,” he said in an email. “Another element of the executive branch (D.O.J.) actually conducted lots of interviews,” he added, referring to the Department of Justice.
“Its investigation made it difficult for a Senate committee to conduct interviews. So check there. Then D.O.J. objects to disclosing them. So checkmate there. That leaves the C.I.A. free to complain about lack of interviews. Pretty neat,” he said.
Last month, in a presentation in Geneva before the United Nations Committee Against Torture, which oversees compliance with a global anti-torture treaty, the Obama administration pointed to Mr. Durham’s investigation as having fulfilled the United States’ obligation under the treaty to investigate torture.
The United Nations panel expressed skepticism about the Durham investigation, pressing for details like whether Mr. Durham’s team had spoken only with government officials, or whether it also interviewed any current or former detainees as part of the investigation. A Justice Department lawyer who was part of the delegation defended the investigation as vigorous and told the committee that Mr. Durham’s team had interviewed about 96 witnesses. But he declined to identify them because no charges were filed.
The Senate and Justice Department investigations trace back to a December 2007 article by The Times that the C.I.A. had destroyed videotapes of interrogation sessions. The Intelligence Committee started an oversight investigation, and the attorney general at the time, Michael B. Mukasey, appointed Mr. Durham to lead a criminal inquiry.
In 2009, as President Obama took office, the committee voted to expand its investigation into the C.I.A. program. Months later, Mr. Holder announced that he was expanding Mr. Durham’s mandate to look into whether charges should be brought for any interrogation that went beyond approved techniques.
In 2010, Mr. Durham, an assistant United States attorney in Connecticut, recommended against any charges connected with the tape destruction. The next year, he recommended closing the preliminary investigation into the treatment of about 100 detainees in C.I.A. custody, but elevated two other incidents that resulted in detainee deaths into full investigations. In 2012, he also recommended closing those without any indictments.
“In light of our assessment of the evidence, the reports thoroughly analyzed the type and nature of criminal charges that could be brought against suspected wrongdoers, along with various defenses that could be raised in opposition to any such charges,” Mr. Durham wrote in his declaration filed on Tuesday. “The reports also discussed what the evidence showed and did not show, and evaluated previous investigations conducted by other entities.”